The Seven Qualities of a Mediator
By Charles B. Parselle
Published on July 10, 2012
A mediator needs to develop several abilities; these are attentiveness, ethical consciousness, emotional intelligence, subject matter expertise, decisiveness, persistence and courage.
The most important ability for a mediator is to pay attention. One historian has written that our entire society suffers from attention deficit disorder. [Niall Ferguson 2004] We live in information overload, thinking about what to do or say next.
The word “attend” is from the Latin attendere, to bend toward, to notice. Most people can pay attention for a few seconds; the required skill is to pay attention over time, to remain focused without having one’s attention wander.
If a mediator did nothing else but pay attention, the results would be remarkable.
Attention is an interesting quality. It can be fixed or floating. It can be focused or diffused. It can be concentrated or peripheral. It can attend to one thing or several things. It can take in a single thing or many things at once. A person who practices paying attention will soon increase in ability, and will experience increased awareness of what is going on.
Paying attention, properly understood, is not terribly hard work but on the contrary, has a light and airy quality. For example, a person absorbed in a book or a movie or a piece of music or a football game is paying close attention, but without a great deal of effort. It is easy to pay attention when one is interested in the subject matter. It is possible for attention to be focused on something to the exclusion of everything else. It is possible for attention to roam like the beam of a flashlight. It is also possible to train one’s attention to focus while remaining attentive to the periphery. The emotion accompanying attention is interest. Heightened interest may experience at enthusiasm or excitement.
The opposite of attention is distraction. Different emotions may accompany distraction, including fear, but boredom is perhaps the most common.
Chaos is complex; order is simple. Parties in conflict are entangled in complexity. The job of the mediator is disentanglement and simplicity. To pay attention and let things unfold sounds deceptively easy but is a skill that takes practice to develop. Sometimes the mediator’s ego gets in the way, by wanting not only to achieve resolution but also to get credit for it – this is a distraction that detracts from paying attention, and is propelled by apprehension (fear) of not being adequately recognized.
“Don’t just do something; stand there.”- Albert Camus
“A long habit of not thinking a thing wrong gives it a superficial appearance of being right.” – Thomas Paine in Common Sense
The subject of ethics concerns itself with action, with right or wrong conduct. Every day contains choices and decisions that implicate one’s self and other people. All choices and decisions have consequences, and this is the subject of ethics. While everyone is aware of choice, not everyone is aware of the connection between choice and ethics. That is because the subject of ethics is often relegated to actions that are immoral, illegal, dangerous or fattening, thus restricting the subject of ethics to the consideration of wrongdoing. The better view of ethics is not only between clearly wrong and clearly virtuous but as the study of choices and consequences within a continuum from absolutely wrong to absolutely right.
Concern with ethics was never better expressed than by John Bunyan in the opening paragraph of his great work written in Bedford jail.
“And behold, I saw a man clothed with rags standing in a certain place, with his face from his own house, a book in his hand, and a great burden upon his back. I watched, and beheld him open the book and read therein, and as he read he wept and trembled, and not being longer able to contain, he brake out with a lamentable cry, saying: ‘What shall I do?” – Pilgrim’s Progress
The question is not “who am I?” or “where have I come from?” or “why do I have to die?” or “what is my destiny?” but “what shall I do?” That question contains two qualities: it refers to action, and it pertains to the future.
Because ethics concerns itself with right action or better action, it pertains to the mediator who has a duty to be impartial as between the parties. Mediators are also called “neutrals”, and although that word has stuck, it does not successfully describe the function of a mediator.
Neutral is a condition in which the third party stays out of the conflict, giving no help to either side. If a mediator were truly neutral, there would be little point in seeking her assistance; the parties could use a stuffed doll instead.
“The hottest place in Hell is reserved for those who remain neutral in times of great moral conflict”. – Martin Luther King, Jr.
“Impartial” is a different word with a different meaning. It means: ‘not partial or biased; fair, just.’ Though a judge has the responsibility of judgment, she is required to be impartial at the start of a case, yet is entirely partial by the end. The act of judgment is to choose one side. That is the function of a judge, but not a mediator. As used in connection with mediation, “impartiality” suggests full yet even-handed involvement, giving as much assistance as ethically possible to all sides in the conflict. Of course, the question always is: How much is ethically possible? That is why the distinction between evaluative and facilitative mediation is not merely a matter of style. A facilitative mediator has made the choice not to evaluate for the parties, while an evaluative mediator is willing to state an opinion. Such decisions necessarily involve considerations of right or wrong conduct in the context of mediation.
There is always a power imbalance between parties to a dispute. Does the mediator seek to address, and adjust, the power imbalance, by lending a bit more weight to the weaker side? Is such “tipping the scales” in favor of greater balance between the parties to be considered an exercise in partiality or impartiality? Sometimes one party appears with an attorney, the other without one; the person with the attorney is nearly always at an advantage. Should the mediator attempt to redress the power imbalance by helping the unrepresented party understand the legal ramifications of the situation, and the possible perils buried within it? Or is the correct action simply to recognize the power imbalance, and do nothing to prejudice the stronger position of one of the parties?
What if both parties are represented, one by an attorney who knows the file, the other by an attorney who is clearly unprepared? Should an experienced mediator lend a hand to an inexperienced lawyer or unrepresented party?
What if one attorney has overlooked something that will tilt the balance of the negotiation in favor of her client? What is the mediator’s responsibility?
Is impartiality even possible, particularly after meeting the disputants and hearing their respective stories? Does the mediator not naturally incline to one side? The Model Standards of Mediation Practice simply advise: “A mediator shall avoid conduct that gives the appearance of partiality to towards one of the parties.” How does one reconcile that standard with the duty of honesty and transparency? This is not the problem of bias or prejudice, which is conceptually simple because it is clearly not acceptable, but a question of ethical conduct, because after the two sides of a conflict are laid out, often it is plain that one side has the better of it; then should the mediator close her eyes to the obvious and join the parties in denial, or simply dissemble, presenting the mask of an impartiality she does not feel? And if not, then what is she to do? This is the concern of ethics.
“Every word is a bias or an inclination.” – Nietzsche
During the course of the mediation, a mediator may come to have a clear view of the respective merits of the parties’ positions; should she express her own views to the parties? Sometimes, parties do want such an evaluation from the mediator, which is why they may choose a retired judge, who is has spent years in the courtroom making such judgments, but what if the parties do not ask for an evaluation? What if one party is stubborn in insisting on a position that is wrong, unjust, and cannot possibly win? Should the mediator take that person to one side, privately, and explain to him the realities of the situation?
Mediation practice standards stress three essentials 1) impartiality 2) confidentiality 3) voluntary participation. What if one party desires to speak privately with the mediator, and then confesses to a crime? What if the confession involves an offence with a child? What is the mediator’s obligation (a) if she in an attorney (b) if she is a mental health provider (c) neither?
“Le coeur a ses raisons que le raison ne connait pas.” – Blaise Pascal
“The heart has its reasons that reason does not comprehend,” Blaise Pascal’s aphorism, is the subject of emotional intelligence.
The phrase “emotional intelligence” refers to an ability that is becoming more valued though not much taught in our society and educational systems. The phrase itself is something of a deliberate oxymoron, because the emotions are normally distinguished from the activity of the intelligence; it expresses the need to relate empathetically to what is being communicated by another person, including the emotional drives underlying such communication.
The topic of “body language”, concerns itself with developing emotional intelligence, which is not an abstract or esoteric ability but can easily be learned by taking the trouble closely to observe the behavior of other people. It helps the mediator to learn to relate empathetically to the participants, if they are to feel they have truly been heard in expressing their grievances and needs, which is an essential step in the mediation process, because it leads to willingness to negotiate a resolution.
In considering broad categories, any person is either more or less open, or more or less concealed. Some people are deliberately concealing themselves in an effort to deceive, while others just do not know how to be more open. The latter are not concealing so much as protecting themselves. Some people pretend to be open, while in fact concealing a great deal. Some people deliberately notice much while revealing little; this is a stratagem. Everyone is on a continuum between completely closed to completely open, and people may vary a great deal in the course of an hour as to how much they are willing to reveal, and how much they wish to conceal.
The mediator is not a therapist and is not necessarily trying to achieve a breakthrough in openness for its own sake, but rather to bring about sufficient communication to make resolution possible. The kind of resolution sought determines the level of openness required. Evaluative mediation requires the least communication, transformative mediation the most. Thus, mediators and participants who seek transformative change may expect to take a good deal longer than a regular mediation. Where parties have come together to talk about their differences and negotiate settlement or resolution, the mediator is only interested in achieving enough honest communication between them that they can achieve the result that they came for.
Subject Matter Expertise
Subject matter expertise can be learned by a mediator, and means expertise in the subject matter of the particular dispute, for example, construction, divorce and family relationships, childcare, business and commercial, contracts, labor relations, environmental, government, torts, real estate, neighborhood, international relations and so on. Some parties to a dispute, in choosing a mediator deliberately seek some subject matter experience, and as a matter of marketing, it is often helpful for a mediator to acquire and therefore be able to advertise some subject matter expertise.
However, it will be found that, once the mediator has mastered or become proficient in the craft of mediation, that the skills can be applied across a wide variety of subject matters. But if a mediator wishes to mediate in the areas of, say, international relations or environmental controversies, then in order to acquire business it will be necessary to acquire some expertise in the subject matter, in order to be able to present credentials that will serve to build credibility.
Decisiveness is essential in a mediator, because she cannot allow a mediation to wallow without the parties becoming impatient, except in those relatively uncommon instances where the mediation is designed to be “transformational” and partakes of many of the qualities of therapy. The mediator has to decide, generally, who to speak to, when to speak to them, what to say to them and how much to allow them to say, because she has an obligation to create a momentum and keep it going. There is a purpose in view and there is generally a time limit, so unless the parties feel they are making some progress, they are likely to become discouraged and the mediation may fail to achieve its purpose, which is to affect resolution.
As Churchill said in one of his less creative aphorisms: “Never give up. Never, never, never, never, never.”
Whole books are written about persistence. Everyone agrees that persistence is critical in any endeavor. That is because most of us are not very persistent; we are inclined to give up. Because a conflict has its own momentum, its own internal dynamics, its own perceived dividend and its own persistence, it takes a lot of energy to create counter-momentum and the energy to bring it to an end. For participants, it may take less energy just to keep slogging away. The participants may wish an end to the conflict, yet still they cannot generate enough will power to achieve closure. The presence of a mediator tips the scales, provided she is persistent.
“If at first you don’t succeed, try and try again. Then quit. No use being a damn fool about it”. – W.C. Fields
Courage is what we all wish we had more of. Courage is the ladder on which all the other virtues mount. Clare Booth Luce
“Courage is just fear holding on a minute longer.” – Harriet Beecher Stowe
“Whoever said anybody has a right to give up?” – Marian Wright Edelman
“One isn’t necessarily born with courage, but one is born with potential.” – Maya Angelou
“Courage is going from failure to failure without losing enthusiasm.” – Winston Churchill
“Courage is the price that Life exacts for granting peace”. – Amelia Earhart
“To see what is right and not to do it is want of courage”. – Confucius
“Life shrinks or expands in proportion to one’s courage”. – Anais Nin
“One man with courage makes a majority.” – Andrew Jackson
“Courage is the first of human qualities because it is the quality that guarantees all others.” – Winston Churchill
“Courage is the art of being the only one who knows you’re scared to death.” – Earl Wilson
In summary, these seven qualities are skills that can be learned and developed. Attentiveness is the foundation of communication skills, but must be combined with decisiveness because it is up to the mediator to make things happen. Action must happen but it must be right action, which is the subject of ethics. The mediator must develop sensitivities that are not accessible to pure reason, and this is the subject of emotional intelligence. The mediator must be able to talk the same language as the disputants, which means some subject matter expertise. The mediator must act decisively to move the disputants towards a result not entirely satisfactory to any of them and must persist when they have given up hope of resolution. A mediator is not exactly a lion-tamer but it helps to have a little courage, because sometimes one has to risk being authentic.
The scarcity of these qualities is why the mediation is happening at all. The mediator supplies what is missing to enable the disputants to settle their dispute and move on with their lives.
It has been said that people get attached to their conflicts and find it hard to give them up, even if they want to. It is a service to people to disentangle them; we call this resolution or peace.
“War is hell.” – General William Sherman
Charles B. Parselle is a mediator, arbitrator and attorney. He graduated from Oxford University’s Honor School of Jurisprudence and is a member of the English bar, then joined the California Bar in 1983. A prolific author and sought-after mediator, he is the author of the book, “The Complete Mediator.”
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